Rohrbach v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Jim Hannah
• Citation: Rohrbach v. State, 374 Ark. 271, 287 S.W.3d 590 (Ark. 2008)
• Decision Date: 25 September 2008
• Docket Number: No. CR 08-132.,CR 08-132.
• Parties: John ROHRBACH, Appellant, v. STATE of Arkansas, Appellee.

287 S.W.3d 590

374 Ark. 271

John ROHRBACH, Appellant, v. STATE of Arkansas, Appellee.

No. CR 08-132.

Supreme Court of Arkansas.

September 25, 2008.

Terry Goodwin Jones, Jonesboro, AR, for appellant.

Dustin McDaniel, Att'y Gen., by: Eileen W. Harrison, Ass't Att'y Gen., for appellee.

JIM HANNAH, Chief Justice.

Appellant John Rohrbach was convicted of three counts of rape, three counts of sexual assault in the second degree, and one count of terroristic threatening in the first degree. The rape and sexual assault counts involved acts committed against his stepdaughter, M.C., and the terroristic threatening count was based on threats made to ensure M.C.'s silence. Rohrbach was sentenced as a habitual offender to the following consecutive terms: life imprisonment for each count of rape, forty-five years' imprisonment for each count of sexual assault in the second degree, and thirty-nine years' imprisonment for terroristic threatening in the first degree, for a total of three life terms plus 174 years.

For reversal, Rohrbach asserts that the circuit court (1) erred in denying his motion for directed verdict on all counts, (2) abused its discretion in allowing testimony about the previous rape and sexual abuse of his biological daughter, (3) abused its discretion in allowing the victim's mother to testify that he had threatened her with physical violence, (4) erred in denying his motion for mistrial as a result of comments made by the prosecutor during closing argument, and (5) erred in denying his motion to set aside the verdict because it was based on inconsistent testimony and because the multiple offenses for which he was charged were based on a continuous course of conduct that should have been charged as a single offense. Because Rohrbach was sentenced to terms of life imprisonment for his rape convictions, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2008). We find no error and, accordingly, we affirm.

Motions for Directed Verdict

Rohrbach moved for a directed verdict on all counts at the end of the State's case and at the close of all evidence, claiming that the witness testimony was inconsistent and, therefore, not credible. The circuit court denied both motions. On appeal, Rohrbach asserts that his convictions are not supported by substantial evidence because the testimony of the victim and her mother was not credible.

In reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. See, e.g., Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006). This court will affirm a judgment of conviction if substantial evidence exists to support it. See id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. See id.

We have held that the credibility of witnesses is a matter for the jury's consideration. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008). It is well settled that the testimony of a rape victim, standing alone, is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. See Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007). Finally, we have stated that flight may be probative evidence of guilt. See Gillard, supra.

The jury heard the following evidence at trial. M.C., who was eight years old at the time of the trial, testified that Rohrbach had raped and sexually abused her on numerous occasions while threatening to harm her mother, brother, and sister if she told anyone about the abuse. M.C. stated that Rohrbach "licked my privates, put his thing in my butt, and tried to put his private in my front private." M.C. also testified that Rohrbach put his penis in her mouth. M.C. testified that, at times, Rohrbach used strawberry and banana flavored condoms when he forced her to perform oral sex on him. M.C. further related that she had masturbated Rohrbach with her hand and that when she did, something yellow and whitish came out of his penis. M.C. testified that she did not tell anyone about the abuse for quite some time because Rohrbach told her "he would kill Mommy, Bubba, and Sissy if I told."

In addition to M.C.'s testimony, the jury heard testimony from M.C.'s mother, Heather Craft. Craft testified that Rohrbach told her that he had "licked on [M.C.]'s privates and that she liked it." Craft also said that on the evening of Friday, February 23, 2007, Rohrbach forced her to stay in the bathroom while he took M.C. to the bedroom, from where Craft heard M.C. say three or four times that "it hurt." A few minutes passed and then, according to Craft, M.C. and Rohrbach came into the bathroom where Craft was taking a bath. Craft stated that M.C. was naked and that Rohrbach was wearing only an open robe. M.C. got into the bathtub with her mother, and Rohrbach, who according to Craft was aroused, told M.C. "to wash her kitty cat real good." Craft stated that Rohrbach also told M.C. that he would not hurt her and that "they would try the other later."

Finally, Craft also stated that she had heard Rohrbach demand sexual favors from M.C. Craft testified that on the morning of Monday, February 26, 2007, Rohrbach approached M.C. with a flavored condom in his hand and told her there was something he wanted her to do. Craft said that Rohrbach was aroused at the time and had pulled his pants down around his knees. Craft stated that Rohrbach told M.C. he wanted her "to do for him what [s]he had done for Chris" and "that she had promised that she would."¹ M.C. told Rohrbach that she did not feel like it because her stomach hurt. Craft said that Rohrbach got upset, told M.C. that it was okay, and threw the condom on the floor.

Randolph County Sheriff's Deputy Willie Kimble testified that on February 26, 2007, he was notified that there were allegations that Rohrbach had sexually assaulted M.C. Deputy Kimble went to the Rohrbach residence to speak with Rohrbach, who was not there. Having received permission from Craft to look around the residence, Deputy Kimble searched the residence and found an opened condom packet, with the condom still inside, in the trash can. Deputy Kimble also testified that Rohrbach fled the state shortly after M.C. and Craft reported the abuse to the police. According to Deputy Kimble, Rohrbach eluded the police for four months and was finally located in Poplar Bluff, Missouri.

The State also presented testimony from Rohrbach's twenty-nine-year-old biological daughter, T.Y., who stated that Rohrbach had sexually abused her when she was between the ages of five and eleven. She testified that Rohrbach fondled her vaginal area, forced her to perform oral sex on him, vaginally raped her, and attempted to rape her anally. T.Y. testified that Rohrbach repeatedly told her that he would kill her, her grandparents, and her aunt and uncle who were raising her if she told anyone about the abuse.

Here, Rohrbach does not challenge the State's proof on any of the elements of the offenses charged against him, but instead argues that the testimony of M.C. and Craft was not credible because prior to this trial, both had made similar accusations against Craft's father that were found to be unsubstantiated. The record reveals that the jury heard testimony concerning the previous allegations of abuse. Craft admitted at trial that she had previously lied when she had alleged that her father had sexually abused M.C. in 2002, explaining that she was angry and trying to separate her mother and father.² It was for the jury to determine whether Craft was being truthful when she testified about Rohrbach's sexual abuse of M.C. Here, the jury clearly found credible testimony concerning both Rohrbach's abuse of M.C. and his threats to ensure M.C.'s silence. In addition, Rohrbach's flight after the allegations provided further proof of his guilt. We hold that there is substantial evidence to support the jury's verdict. The circuit court did not err in denying Rohrbach's motions for directed verdict.

Admission of Testimony

Rohrbach next argues that the circuit court erred in admitting the testimony of his biological daughter, T.Y., because her testimony was more prejudicial than probative. At trial, T.Y. testified that Rohrbach sexually abused her when she was between the ages of five and eleven and that he told her he would harm her family members if she told anyone about the abuse. The circuit court allowed T.Y. to testify about the abuse and the threats, pursuant to Arkansas Rule of Evidence 404(b) (2007).

The admission or rejection of evidence under Rule 404(b) is within the sound discretion of the circuit court, and it will not be reversed absent a manifest abuse of discretion. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). According to Rule 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Such evidence is permissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ark. R. Evid. 404(b). This court's precedent has recognized a "pedophile exception" to this rule, whereby evidence of similar acts with the same or other children is allowed to show a proclivity for a specific act with a person or class of persons with whom the defendant has an...